Abstract

This essay challenges the received approach to the limitation of rights in Canada, arguing that the Supreme Court's jurisprudence has strayed from the path set by the Canadian Charter's limitation clause. The Supreme Court employs the key words 'infringement', 'impairment', 'breach', and 'violation' to trigger a proportionality analysis, with the consequence that the limitation clause analysis is looked upon with suspicion as a defence for the infringement of constitutional rights. Yet, the limitation clause speaks of a right's limit, which is synonymous with its 'boundary', 'demarcation', and 'border', suggesting that a limitation clause serves as a gateway for specifying and defining indeterminate rights. This understanding allows for rights to be situated within, rather than opposed to, a free and democratic society. In this way, the legislature's acts become a source for the definition of rights rather than their violation and all rights become candidates for being absolute.